A short thread on Canada and the Statute of Westminster, 1931.
The preamble and its discussion of the Crown is the most interesting part of the SoW for us today, since the Canada Act, 1982 rendered the rest moot.
The preamble was a compromise. Canada wanted full legislative autonomy, which implied Canadian control of royal succession and royal styles and titles in Canadian law. The British wanted the UK Parliament to keep control of succession and RS&T throughout the Commonwealth.
The British worried that if Commonwealth members controlled their own royal succession and RS&Ts, the line of succession could divert between the realms and the Sovereign might have incompatible titles.
But Canada and other realms, notably South Africa, wanted full legislative autonomy, including over royal succession and RS&T. How to get around this impasse? A convention.
The preamble lays out a convention such that the Parliaments of the Commonwealth realms must assent to changes to the laws of royal succession and RS&T. This was meant to ensure that they would all keep the same line and compatible titles, without diminishing their legal autonomy
Put differently, the realms where the SoW applied would control their own law of succession and RS&T, but they agreed to a political rule such that alterations to these laws should be done with with the assent of the Parliaments in the other realms.
The chief Canadian architects of this compromise were OD Skelton and Ernest Lapointe.
When the abdication crisis unfolded in late 1936, Skelton convinced William Lyon Mackenzie King to hold the line on the details of the compromise. The law of succession would have to be changed in Canadian law (via s4 of the SoW), since Parliament wasnt sitting.
The Canadian Parliament would then pass legislation in 1937 to fulfill the convention in the SoW preamble, after the British law changing the succession had already changed the line in Canadian law with the request and consent of the Cdn Cabinet (again, s4 SoW).
In the decades that followed, the realms started ignoring the preamble. Australia and New Zealand, for instance, would change their RS&T without the assent of other Commonwealth Parliaments.
In 1982, though, Canada did a few weird things. First, we included the SoW in the schedule to the Constitution Act, 1982, effectively giving it a constitutional standing. But we didn't put any other laws related to royal succession in there. Were these laws no longer Cdn?
Australia and New Zealand were smarter here. They explicitly incorporated all imperial acts into their own laws around that time.
The Constitution Act, 1982 also made the "office of the Queen" subject to the unanimous amending formula. After Meech and Charlottetown, nobody wanted to amend the constitution, let alone unanimously.
So, when time came to change the law of royal succession in 2013, the Canadian government change its view of the SoW preamble. It was no longer a compromise intended to Canada control of its own law of succession.
Instead, the Cdn government argued that succession was not a matter of Cdn law at all. Ottawa argued that the UK Parliament controlled the law of succession and Canada would only assent as per the SoW preamble.
The Cdn government further held that the preamble to the Constitution Act, 1867 and s9 of that act meant that the UK monarch was automatically monarch of Canada. The SoW preamble merely served to secure Cdn assent when the UK changed the law of succession.
This interpretation did two things: a) it avoided having to touch the "office of the Queen" to keep Canada aligned with the UK line of succession; b) it avoided having the law of succession a regular Cdn law subject to a Charter challenge.
Lower courts in Ontario and Quebec have upheld this interpretation, and I suspect the Quebec court of appeal will, too.
It makes Canada look a little odd, of course. The compromise in the preamble was meant to give Canada legal control of royal succession, while maintaining a common line throughout the Commonwealth. That's no longer Ottawa's interpretation or that of Cdn courts.
Australia and New Zealand passed their own laws of royal succession. They no longer bother assenting to meet the convention in the SoW preamble either.
So, the SoW preamble is a bit like interprovincial free trade. If you look at the history and the purpose at the time, you know what those who drafted these documents were aiming for. But their aims no longer fit with our contemporary constraints and realities.
In the contemporary Canadian constitution, the Statute of Westminster offers a simple mechanism to express our Parliament's approval to changes that the UK Parliament makes to who wears the Canadian Crown.
It's contrary to the original Canadian intent, but it allows us to avoid the constitutional amending formula and Charter challenges to royal succession. A true Canadian compromise. Fin.
